Kevin
Welcome to the Kelly & Kelly law podcast. This is Kevin from Borealis, and today I’m joined once again by criminal defense attorney Mike Kelly, head of the criminal defense department at Kelly & Kelly P.C. How are you doing, Mike?
Mike
Good, Kevin. Glad to be here. Glad to share some more information with everybody.
Kevin
Absolutely. Thank you for making time in your busy schedule once again.
In this episode, we’re covering drugged driving in Michigan, not ‘drunk driving’, but ‘drugged’. It’s a topic that’s becoming more common as marijuana legalization spreads and law enforcement ramps up roadside drug testing.
So let’s kick it off is, can you tell us a little bit about drugged driving in general under Michigan law, Mike?
Mike
Yeah, so Michigan’s OWI law, or the operating on toxicated law, or the DUI law, does include both alcohol and drugs or controlled substances. These include recreational drugs as well as prescription drugs, essentially anything that you can put in your body. If it impairs you or has the ability to impair your ability to operate safely, then you can be arrested and potentially convicted of this charge.
Kevin
All right. Yeah, fair enough. And as far as marijuana and driving, I mean, it’s got to be hard to measure how impaired somebody is. What is legal with marijuana in relation to driving?
Mike
Well, unlike alcohol, there is no per se limit for THC or active marijuana substance or most drugs, except in some limited commercial context. But like alcohol with recreational marijuana, although we can legally, if you’re of age, consume these products, as I mentioned earlier, you can’t over-consume in these products.
And this can be a tricky area when you’re talking about marijuana and, you know, the user, the particular user. What are the effects of this, of one individual versus another? And these are things that ultimately the police have to take into consideration when they’re making contact with somebody and they suspect that that person is operating under the influence of a drug or a substance like marijuana.
So police can use certain tests that they have. These are called drug recognition experts or DREs. There’s officers that have this specific training that they’re employing specific forms of field sobriety testing that are designed to gauge whether or not somebody may or may not be under the influence of a controlled substance like marijuana.
Kevin
That’s interesting. Yeah, because everyone has different tolerance levels and THC stays in your system long after impairment fades. So I imagine that must be a challenge.
Mike
Well, and it’s also the issue of if somebody was a daily user of a product like marijuana, you know, the presence of that substance in their system would last longer as opposed to somebody that was incidental. And this is this is a this is a contrast to where we’re familiar with alcohol and its ability to dissipate from the bloodstream over a certain number of hours or certainly days that somebody wouldn’t still be under the influence of that wouldn’t have that substance in their body. Whereas something like marijuana, you could have used the night before be driving the next day and still that that substance would come up in a test. And that could be either a saliva test that we’re seeing those being used a blood test certainly is the most common way being used or through the through the performance of field sobriety tests. They can still make the arrest even without a blood test saliva test or any other test that actually confirms the presence of that drug.
Kevin
Absolutely. Yeah, that’s that’s a whole new area. And what about prescription medications as well? Like Ambien or you know, any or Xanax or any of those types of substances?
Mike
Well, I get this call a lot. In fact, I had this exact call today. So he said, “Listen, Mike, you know, they put me through the PBT. The preliminary breath test. I blew all zeros. They weren’t satisfied. They thought I still had things going on. I got stuff that I’m properly prescribed stuff
that I take on a daily basis. Am I going to be in any trouble if these things come up in my system?”
And the answer to that, of course, is well, it depends. It depends if you took more than you were prescribed, or didn’t take it as directed. Or if the instant was that certain substances are maybe prescribed to you and take it nighttime and you happen to be taking that earlier or maybe you took it because you thought you’re going to bed for the night and end up having to go out pick somebody up or you forgot something you find yourself driving.
Well, yes, the presence of prescription medications in your blood system, even when properly prescribed, could still invite a charge for operating under the influence of a controlled substance. And there are certain substances that have a zero tolerance range, and there are certain substances that you’re going to be looking at what they call the therapeutic threshold level, or whether or not somebody taking that at a regular sequence or whether someone is taking that at a regular sequence, or somebody would be taking it higher.
Now, this can be body and person specific, but there is some generally accepted standards of what that drug should look like if regularly ingested over a normal course of time compared to if somebody was taking perhaps more of it or taking it at a greater frequency as was otherwise directed. And again, like many bottles on prescription say, you know, does it warn against taking when driving or operating heavy machinery or something like that? Does it say watch out for dizziness or sleepiness? These are things that clearly show that your ability to drive could be impaired. So just because something’s prescribed doesn’t mean you’re out of the woodwork in terms of potentially being criminally responsible if they find that substance in your blood.
Kevin
That’s good information and important to note. We talked earlier about field sobriety and blood testing for drugs. Can we talk more about that? How do these field sobriety tests differ from that of a regular DUI with alcohol?
Mike
Well, they’re same in the regards that you’re going to have a certain individual member of law enforcement conducting a series of tests. So they’re going to be subjected. They’re going to be something that usually only that officer can observe on a one in one setting. These are going to be tests of your eyes, of your reflexes, of your ability to do multiple things at the same time. Can you count while looking down at your toe? Divided attention tasks? They’re going to be things that your body will be exhibiting if it was known to be under the influence, certain fluctuations of the pupils, of the other movement of the eyes, things that that person wouldn’t be able to control or even really know that was something that was affected due to the consumption of alcohol.
These are things that will presume to be observable by a trained drug recognition expert. Now, what does that mean? I mean, even the term itself, “a expert”, seems to connote or suggest that this person has some specialized training. True, they are trained in a in a additional quality than a regular police officer, and it is a step above regular sobriety testing because you’re training to look for something more than just alcohol impairment. But even that distinction is important. It would suggest that the signs and symptoms of impairment that a drug recognition expert or a trained officer for detection of the impairment due to drugs will be looking for, possesses some higher level of training and awareness and experience than an ordinary police officer.
And again, so I think it invites further inquiry from an attorney to say, how qualified are you really? How soon did you have this this special training going on? And is there really anything special about it? Or is it just simply a stamp on your record, something that can qualify you to make that one on one assessment of somebody you already believe to be under the influence of drugs or alcohol?
Kevin
And that segues nicely into our next question. How can a DUI lawyer at Kelly & Kelly PC help defend somebody against drug related OWI charges?
Mike
Yeah, I think it all comes down to, you know, information gathering. I got to get information from you to help you in your case. You’ve got to get information from me. Let’s figure out what the circumstances are in your case. And I had this like the conversation I had today. I said, we need to think about this twofold. There may be a very reasonable legal explanation for what was in your system and whether you were taking it properly, whether you had enough of it on a recreational level that it shouldn’t have affected your ability to drive, whether or not a doctor has prescribed you something and it was taken as directed.
These are things that we can determine and we could probably present these to a reasonable prosecutor’s office if your levels are within that appropriate range. But if the results come back and for whatever reason, due to a combination of factors or an individual officer’s opinions about your performance on the roadway, your case may be going into court. And that’s something that you need a game plan for. We need to get a safety net in place to make sure even if this case does seemingly hold water enough to support an initial prosecution, how can we set this up so it’s not something that’s going to permanently derail your future, your life, your livelihood, and certainly not something that can send you to jail.
So get a lawyer in line, consult with that lawyer, gather the information that you need from that lawyer to make an informed decision, support your defense attorney by providing all the information available to you and get a game plan in place to help you survive this unfortunate process.
Kevin
That’s great information, Mike. Thank you very much.
Mike
Sure, Kevin. Thanks, everybody.
Kevin
All right. Until next time, have a great day and stay safe.
Mike
Stay safe.
